NYAPRS Note: Yesterday, the National Council on Disability (NCD) and the Christopher & Dana Reeve Foundation released "Parenting with a Disability: Know Your Rights Toolkit" at a historic White House Forum on the Civil Rights of Parents with Disabilities.
Currently, 35 states include disability as grounds for termination of parental rights. Nine states and the District of Columbia list physical disability in particular as grounds for termination of parental rights, even without evidence of abuse or neglect. These states include Kansas, Maryland, Mississippi, New Mexico, North Dakota, Ohio, and South Carolina in addition to the nation's capital. In every state, the presence of a disability can be arbitrarily used when determining the "best" interests of a child.

NCD and the Christopher & Dana Reeve Foundation are releasing the "Parenting with a Disability: Know Your Rights Toolkit" to build on the awareness raised following the release of NCD's groundbreaking 2012 report, "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children"- the first of its kind for a federal agency.

Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children

Executive Summary
The goal of this report is to advance understanding and promote the rights of parents with disabilities and their children. The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities-including intellectual and developmental, psychiatric, sensory, and physical disabilities-experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.

The fundamental right to parent without interference is protected by the U.S. Constitution and balanced by the judicially recognized power of the state to interfere to protect the well-being of its children. Factors used in both dependency court and family court proceedings to determine whether children need to become wards of the state and to determine which parent is the more competent custodian may be reasonable. Nonetheless, these rules have not been objectively or justly applied to parents with disabilities.

The first half of the 20th century was plagued by the eugenics movement, which resulted in more than 30 states passing legislation permitting involuntary sterilization. This legislative trend was premised on the belief that people with disabilities and other "socially inadequate" populations would produce offspring who would be burdensome to society. The Supreme Court endorsed the legislative trend toward forced sterilization; as a result of these state statutes, by 1970 more than 65,000 Americans had been involuntarily sterilized. Even today, 22 years after the passage of the Americans with Disabilities Act, several states still have some form of involuntary sterilization law on their books.

The power of the eugenics ideology persists. Women with disabilities still contend with coercive tactics designed to encourage sterilization or abortion because they are not deemed fit for motherhood. Equally alarming, a growing trend is emerging toward sterilizing people with intellectual or psychiatric disabilities.

Despite this harrowing history, many people with disabilities still choose to become parents. Current research reveals that there are 4.1 million parents with disabilities in the United States, roughly 6.2 percent of all American parents with children under the age of 18. The rates are even higher for some subgroups of this population. For example, 13.9 percent of American Indian/Alaska Native parents and 8.8 percent of African American parents have a disability. Further, 6 percent of white, 5.5 percent of Latino/Hispanic, and 3.3 percent of Asian/Pacific Islander parents have a disability. Of the parents with disabilities, 2.8 percent have a mobility disability, 2.3 percent have a cognitive disability, 2.3 percent have a daily activity limitation, 1.4 percent have a hearing disability, and 1.2 percent have a vision disability. Because of the paucity of data and research on the prevalence of parents with disabilities, these statistics likely underestimate the number of parents with disabilities significantly.

These parents are the only distinct community of Americans who must struggle to retain custody of their children. Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent. In families where the parental disability is physical, 13 percent have reported discriminatory treatment in custody cases. Parents who are deaf or blind report extremely high rates of child removal and loss of parental rights. Parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children.

Clearly, the legal system is not protecting the rights of parents with disabilities and their children. Fully two-thirds of dependency statutes allow the court to reach the determination that a parent is unfit (a determination necessary to terminate parental rights) on the basis of the parent's disability. In every state, disability may be considered in determining the best interest of a child for purposes of a custody determination in family or dependency court. In theory, a nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent's disability is creating a detriment that cannot be alleviated. However, this is not the reality.

Discrimination against parents with disabilities is all too common throughout history, and it remains an obstacle to full equality for people with disabilities in the present. Furthermore, this problem is not limited to traditional categories of disability, such as physical or sensory impairments. Discrimination by legal authorities and in child custody proceedings against parents with emerging disabilities is common as well. For example, as improved diagnosis and expanding diagnostic criteria have enhanced identification of children and adults on the autism spectrum, discrimination against parents diagnosed as autistic has emerged as a serious and ongoing systemic problem. As our society recognizes autism and other newly identified disabilities in a greater percentage of the next generation, the percentage of the American public susceptible to discrimination will increase. Parents who belong to these groups will experience the same abuses of their civil rights that parents with psychiatric disabilities currently experience; notably, status-based removals and deprivation of due process protections such as reunification services.

This report recommends actions that should be taken immediately to ensure the rights of parents with disabilities and their children. Whether action is taken at the state or federal level, as an amendment or a new law, the need for action could not be more timely or clear.